This Article will explore the power struggle that Medicaid invites and its potential elevation due to the pressures that will follow the Patient Protection and Affordable Care Act’s (ACA) expansion. Part I of this Article will describe the three phases of private enforcement litigation and how they have affected Medicaid reimbursement rates. This Part also will highlight the deceptive stability that has taken root in the lower federal courts by describing the recent state attempts to end private enforcement actions. The first Part will conclude by briefly considering the nature of the federalism arguments that states are making. Part II will explain why lawmakers missed an important opportunity to add an explicit right of action to the Medicaid Act when drafting the ACA, while at the same time they created a law that will increase the need for federal oversight. The second Part will then explore how the ACA contributes to the Medicaid power struggle. The Article concludes that private actions in federal court provide indispensable balance as well as a much needed de facto oversight mechanism for the already overextended, underfunded Department of Health and Human Services.
Nicole Huberfeld, Where there is a Right, There Must be a Remedy (Even in Medicaid), 102 Ky. L.J. 327 (2013).